The Justice Who May Have Been Too Smart for the Job

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Justice David Souter’s death last week prompted an outpouring of nostalgia for a recent but now bygone era of Supreme Court politics. A nominee whose views were not foreordained? A Senate confirmation vote in which the nominee received 90 votes? A Justice who retired after less than twenty years of service and never had a lucrative book contract or collected lavish gifts from patrons? So quaint, so 20th century.

Souter was all of the above. Hence the wistful longing for a kinder, gentler era in many of the articles reporting his death, accompanied by discontent over how conservative the Supreme Court has become. Exhibit A: Linda Greenhouse’s obituary detailing Souter’s disappointment with the Supreme Court’s decision in Bush v. Gore and describing his “mood brought [to] another low” as shown by his dissent in 2007 that “appeared to be addressing broader and deeper issues than the one this single case presented.”

Many obituaries highlighted Souter’s brilliance and noted his common-law approach to judging. I admire Souter for those qualities. And yet, on occasion, Souter may have been too smart for his own good because the defining qualities of his jurisprudence sometimes worked at cross purposes.

A common law judge generally decides cases narrowly, with careful attention to the facts of the case and primary attention paid to the contentions of the litigants. This approach accords with the view that the law develops over time on a case-by-case basis. It also overlaps with judicial minimalism, in which the judge not only decides the case narrowly but shallowly as well, to allow future development of the law as much as possible.

The reasoning in Souter’s opinions was anything but shallow. His writing was erudite and nuanced, so that even as he was deciding the case narrowly, he nevertheless set out a detailed understanding of the law—not just the rules and cases, but the relevant facts and institutional role for each branch of government as well. By writing so much while deciding so little, Souter sometimes undermined the possibility that his decision would become a durable precedent.

Consider two cases in which Souter wrote for the Court: Bell Atlantic Corp. v. Twombly, a civil procedure case in which Souter wrote the Court’s majority opinion applying the plausibility pleading requirement to antitrust claims, and United States v. Mead Corp., an administrative law case in which Souter articulated a multi-factor approach for applying the now-overruled Chevron doctrine.

Twombly

Prior to Twombly, the Federal Rules of Civil Procedure set up a system known as notice pleading, in which a plaintiff could start a lawsuit simply by filing “a short and plain statement of the claim.” In 2007, the Supreme Court held in Twombly that the higher plausibility standard applied in evaluating the allegations of a plaintiff’s antitrust claim. Souter wrote the majority opinion for the Court dismissing the plaintiffs’ claims as insufficient.

Justice John Paul Stevens wrote a dissent that Justice Ruth Bader Ginsburg joined. It is worth noting that Stevens was a former antitrust lawyer, and he argued persuasively that the majority was wrong on the law.

Souter did not confine his opinion to a discussion of antitrust law. Instead, he also addressed the Supreme Court’s understanding of what constituted a “short and plain statement of the claim.” In doing so, he addressed—and, in Stevens’s words, interred—the Court’s well-known interpretation of the phrase “no set of facts” from Conley v. Gibson, a 1957 case that underscored the expansive approach courts should take when evaluating the legal sufficiency of the plaintiff’s allegations.

Souter noted that Conley set out “‘the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’” What did the phrase “no set of facts” mean?

Souter explained that the court of appeals in Twombly “specifically found the prospect of unearthing direct evidence of conspiracy sufficient to preclude dismissal, even though the complaint [did] not set forth a single fact in a context that suggest[ed] an [illegal] agreement.” This was incorrect, he said, because Conley described only “the breadth of opportunity to prove what an adequate complaint claims, not the minimum standard of adequate pleading to govern a complaint’s survival.”

In his dissent, Stevens argued that Souter’s interpretation of Conley was contrary to “the policy choice embodied in the Federal Rules” that “separating the wheat from the chaff” in a civil case “is a task assigned to the pretrial and trial process.”

After Twombly, the question in civil litigation was whether the plausibility pleading standard articulated by Souter applied only to antitrust cases or more broadly. Two years later, in 2009, the Supreme Court held in Ashcroft v. Iqbal that the plausibility pleading standard applies in all civil cases, not just those involving antitrust claims. Iqbal was decided by a 5-4 vote, and this time Souter dissented. Indeed, Souter complained in his dissent that the majority misapplied the pleading standard under Twombly. However, it was his decision in Twombly that gave the Court the opportunity to address this broader question.

One could plausibly argue that the majority in Iqbal would have arrived at the heightened plausibility pleading standard regardless of prior case law. Nevertheless, I believe that Souter’s opinion in Twombly contributed to, if not enabled, the Court’s broad holding in Iqbal by discussing the requirements of the Federal Rules of Civil Procedure’s general pleading rule. He raised a question the Supreme Court then had to address. Civil litigation continues to be governed by the plausibility pleading standard applied in Iqbal.

Mead

While Twombly gave us the plausibility pleading standard that still applies today, Mead involved the recently overruled Chevron rule that, according to Chief Justice John Roberts, “sometimes required courts to defer to ‘permissible’ agency interpretations of the statutes those agencies administer—even when a reviewing court reads the statute differently.”

While Souter was a Justice, the Supreme Court wrestled with how to apply Chevron, not whether it should continue to be good law. A fundamental premise of the administrative state is that we live in a complex world and that administrative agencies, when authorized by Congress, possess the expertise to regulate different aspects of it. There are many agencies and many more statutes and regulations, however. At that time, the Court had to decide under Chevron whether judicial review should mirror the complexity of the administrative state or simplify it.

In 2001, the Supreme Court opted for the former view in Mead, a decision written by Souter. With citations omitted, here is the first paragraph of his opinion:

The question is whether a tariff classification ruling by the United States Customs Service deserves judicial deference. The Federal Circuit rejected Customs’s invocation of Chevron . . . in support of such a ruling, to which it gave no deference. We agree that a tariff classification has no claim to judicial deference under Chevron, there being no indication that Congress intended such a ruling to carry the force of law, but we hold that under Skidmore v. Swift & Co. (1944), the ruling is eligible to claim respect according to its persuasiveness.

As succinctly as possible, here is what Souter did in this paragraph: First, he indicated that an agency’s interpretation of the law was not always entitled to Chevron deference. That determination depended upon whether Congress intended the agency to act with “the force of law”—for example, when Congress authorized the agency to promulgate rules.

As a result, a court applying Mead was required first to examine the form of agency action. Was the agency enforcing a properly promulgated rule or, as in Mead, issuing a decision through a ruling letter that applied only to the transaction before it? In the latter situation the agency did not get Chevron deference.

Second, Souter wrote, just because an agency was not entitled to Chevron deference, that did not mean that its interpretation could not get any deference from the court. Skidmore deference could be warranted. All the court had to do was evaluate the agency’s action pursuant to the following factors: “the thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”

Got it? I hope so, because I’ve run out of fingers on one hand to keep track of all the factors the court may have had to apply in determining what, if any, deference should be given to an agency’s interpretation of the law after Mead. The premise of Souter’s opinion was that judicial review of agency action should acknowledge “the great variety of ways in which the laws invest the Government’s administrative arms with discretion, and with procedures for exercising it.”

Justice Antonin Scalia was the only dissenter in Mead. His most forceful criticism was that Court’s multi-factor approach was not “sustainable in practice.” He predicted that “protracted confusion” would result from the Court’s “wonderfully imprecise” rules, which he also characterized as “a grab bag” of “factors.” The basis of Scalia’s dissent was that regulation should be straightforward to be effective—and that the application of Chevron deference in all such cases was superior to the majority’s approach in Mead because it was easier to apply.

Ultimately whether Souter or Scalia was correct is now a question of (recent) history as the Supreme Court overruled Chevron last year. In doing so, the Court gave as one reason the difficulty in determining when Chevron deference was due and cited Mead and other cases for this point. To be fair, it would be a stretch to attribute the demise of Chevron to Mead. Since 2001, the composition of the Court has changed almost entirely—Clarence Thomas is the only current Justice who was with Souter on the Court when it decided Mead—and the current Court’s skepticism of the administrative state has blossomed only in the past few years.

Souter’s clash with Scalia in Mead encapsulates a debate over how the Supreme Court should decide cases. Is the Court’s primary obligation to the parties (and therefore to decide the case) or is it to the legal system (and therefore to articulate general rules)? As a common law judge, Souter generally took the former approach in answering this question. Along the way, he wrote deeply, providing comprehensive discussions of the law.

Twombly and Mead are just two of the many opinions Souter wrote over the course of his tenure on the Supreme Court that illustrate his formidable intellect and elegant writing. His views on the issues in those cases have not prevailed. Souter objected that his reasoning in Twombly was misapplied in Iqbal. While his approach in Mead has been cast aside along with Chevron, Souter may have appreciated that the current Court relied on Skidmore to replace Chevron.

In her New York Times obituary, Greenhouse wrote that Souter’s “name was on so few significant opinions and his profile at the court was so low that after his first few years, legal academia essentially stopped paying attention to him.” No Justice should write for acclaim or academics, of course. But Twombly and Mead suggest that Souter’s nuanced approach may have prevented his decisions from enduring with, in the words of the latter case, the force of law.

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